Spectrum Laboratory Products, Inc. ("Seller" or "Spectrum") is engaged in the business of manufacturing, repackaging and distribution of fine chemicals and laboratory supplies to its customers. These Terms and Conditions (the "Terms") are incorporated into any purchase order ("Order") executed by Spectrum and the Customer and shall be deemed accepted by Seller's commencement of performance, provision of services, shipment of products ("Services" and "Products"), or other indication of agreement, whichever occurs first, and shall constitute acceptance of this Order and all of its terms and conditions (the "Acceptance Date"). "By using Seller's products or services, you (the "Customer") agree to be bound by the following terms and conditions which together with any Order, comprises the entire agreement ("Agreement") between Spectrum and the Customer. Any provisions contained in any document issued by Customer are expressly rejected and if the terms and conditions in this Agreement differ from the terms of customer’s offer, this document shall be construed as a counter offer and shall not be effective as an acceptance of customer’s document. This is the complete and exclusive statement of the contract between Seller and Customer with respect to Customer’s purchase of the Products. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Seller and Customer. Seller’s failure to object to terms contained in any subsequent communication from Customer will not be a waiver or modification of the terms set forth herein. All orders are subject to acceptance in writing by an authorized representative of Seller.

 

1. Price

All prices published by Seller or quoted by Seller’s representatives may be changed at any time without notice. All prices quoted by Seller or Seller’s representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for Products will be as specified by Seller or, if no price has been specified or quoted, will be Seller’s price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of Seller’s original price quotation.

 

2. Specifications 

Product specifications are subject to change without prior notice. Please see change control agreement for further information.

 

3. Payment Terms

Seller may invoice Customer upon shipment for the price and all other charges payable by Customer in accordance with the terms herein. If no payment terms are stated on the face of the Order, payment shall be net thirty (30) days from the date of invoice. If Customer fails to pay any amounts when due, Customer shall pay Seller interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys’ fees and costs) incurred by Seller in collecting such overdue amounts or otherwise enforcing Seller’s rights hereunder. Seller reserves the right to require from Customer full or partial payment in advance if Seller believes in good faith that Customer’s financial condition does not justify the terms of payment specified. All payments shall be made in U.S. Dollars. Failure to pay in established terms will result in delay of order delivery and subject to account review.

 

4. Taxes and Other Charges

Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products, all of which taxes and duties must be paid by Customer.

 

5. Product Return Policy
Contact Customer Service to request a Return Materials Authorization (RMA) number. Requests to return products must be made within 15 days of receipt for domestic orders; international requests must be made within 30 days.  Authorized returns to Spectrum must be received within 15 days of issuance of RMA.  All returns must be packed in the original packaging and labeled in accordance with DOT regulations applying to transportation of hazardous materials and in a manner, which will preserve the product from any damage in order to insure proper credit. To ensure prompt handling, the return authorization number should be placed on the outside of the package and a detailed explanation of the defect enclosed with the Product.  Spectrum will attempt to accommodate all reasonable requests for returns; however, all returned items are subject to a minimum 25% restocking fee, plus return shipping.

 

Non-returnable Product:
• Temperature sensitive products
• Compendia chemicals (USP, EP, JP, NF, FCC)
• Regulated or controlled substances
• Sterile products
• Items not stocked in Spectrum warehouses

 

Credit will not be allowed for Products returned without the prior written consent of Seller.

 

6. Damaged Shipments
Please inspect your Spectrum shipment upon receipt. If any external damage or shortage is noticed, accept the shipment only after the driver has noted the damage on the delivery receipt. Keep all containers and packaging material for inspection; take pictures and submit to Spectrum Customer Care. Spectrum reserves the right to repair (investigate) damaged product before replacement or credit is determined.

 

7. Product and Service Warranties and Limitation of Liability
(a) Spectrum warrants to Customer that all products provided to Customer pursuant to this agreement (each a "Product", and collectively, the "Products") will meet the manufacturer's specifications for a term equal to the warranty period stated in the Product manufacturer's literature or sixty (60) days, whichever is longer.

 

(b) If any Product or service warranted hereunder proves defective or non-conforming, Spectrum's sole liability and Customer's sole remedy hereunder shall be for Spectrum, to repair or, at Spectrum's option, (i) replace (or re-perform the Service), at no cost to Customer, any such defective or non-conforming Product with a non-defective or conforming Product (as applicable) or (ii) credit Customer's account for all amounts paid with respect to the defective or non-conforming Product or Service upon Spectrum's receipt of the defective or non-conforming Product. In the event of replacement, the replacement Product will be warranted for the remainder of the original warranty period or ninety (90) days, whichever is longer.

 

(c) However, in no event shall Seller have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Customer, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, or (vi) improper storage and handling of the Products. Any installation, maintenance, repair, service, relocation or alteration to or of, or other tampering with, the Products performed by any person or entity other than Seller without Seller’s prior written approval, or any use of replacement parts not supplied by Seller, shall immediately void and cancel all warranties with respect to the affected Products.

 

Seller’s warranty shall be limited to Products which are defective or non-conforming, which is defined as a Product which is outside of the manufacturer's defined Product specifications. A defective or non-conforming product does not include Products that fail to meet any fitness of use by Customer or any unique Customer operating conditions or applications.

 

(d) If you believe a Product falls within our warranty and requires repair or service, please contact Spectrum for instructions on how to proceed. The obligations created by this warranty statement to repair or replace a defective Product shall be the sole remedy of Customer in the event of a defective Product. SPECTRUM HEREBY DISCLAIMS ALL OTHER WARRANTIES OR GUARANTEES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

Any warranties or claims, expressed or implied, by Spectrum for its products are valid only if they are sold directly to the Customer by Spectrum or sold through one of the US or worldwide distributors authorized by Spectrum.

 

Notwithstanding the foregoing, Products supplied by Seller that are obtained by Seller from an original manufacturer or third party supplier are not warranted by Seller, but Seller agrees to assign to Customer any warranty rights in such Product that Seller may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier.

 

 

8. Limitation of Liability

Notwithstanding anything to the contrary contained herein, the liability of Seller under these terms and conditions (whether by reason of breach of contract, tort, indemnification, or otherwise, but excluding liability of Seller for breach of warranty (the sole remedy for which shall be as provided under WARRANTY above)) shall not exceed an amount equal to the lesser of (a) the total purchase price theretofore paid by Customer to Seller with respect to the Product(s) giving rise to such liability or (b) one million dollars ($1,000,000). Notwithstanding anything to the contrary contained herein, in no event shall Seller be liable for any indirect, special, consequential or incidental damages (including without limitation damages for loss of use of facilities or equipment, loss of revenue, loss of data, loss of profits or loss of goodwill), regardless of whether Seller (a) has been informed of the possibility of such damages or (b) is negligent.

 

9. Indemnification 

Customer agrees to defend, indemnify and hold Spectrum, it officers, directors, employees and agents harmless from and against any and all claims, actions, lawsuits, including Spectrum’s attorneys’ fees, expenses, and costs of litigation, arising from Customer’s purchase or subsequent sale or transfer of a Product or to any breach Customer’s obligations under this Agreement. Customer agrees that its duty to defend, indemnify and hold Spectrum harmless arises at the first notice of a claim, action, or lawsuit. Customer agrees that its duty to defend, indemnify and to hold Spectrum harmless applies to any attorneys’ fees, expenses, and costs of litigation incurred or paid by Spectrum to enforce this Section 9. This Section 9 shall survive termination and cancellation of this Agreement.

 

10. Proprietary Information 
Customer agrees that all pricing, discounts and technical information that Seller provides to Customer are the confidential and proprietary information of Seller. Customer agrees to (1) keep such information confidential and not disclose such information to any third party, and (2) use such information solely for Customer’s internal purposes and in connection with the Products supplied hereunder. Nothing herein shall restrict the use of information available to the general public. Customer shall inform its employees, agents, and representatives of these obligations and shall require them to assume equivalent obligations.

 

11. Miscellaneous

(a) Termination - This Agreement may be terminated by either party with agreed upon written notice delivered to the other party; This termination will only apply to Purchase orders that are not in shipment to facility or at Sellers warehouse.  In the event of any termination or expiration of this Agreement, Customer shall be billed immediately for Products shipped through the effective date of such termination or expiration and all custom Products purchased for Customer in Spectrum's inventories at such date, and Customer shall pay the invoiced amount immediately upon receipt of such invoice. 

 

(b) Delivery, Cancellation and Changes by Customer - The Products will be shipped to the destination specified by Customer, F.O.B. Seller’s shipping point. Seller will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Delivery of all orders will be FCA (INCOTERMS 2000). Shipping and handling fees, special packaging materials (e.g., blue ice), carrier surcharges and hazardous material fees imposed by government regulation will be added separately to the invoice. Seller reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Customer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. All shipping and delivery dates are approximate only, and Seller will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller’s reasonable control. In the event of a delay due to any cause beyond Seller’s reasonable control, Seller reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Customer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Orders in process may be canceled only with Seller’s written or verbal consent and upon payment of Seller’s cancellation charges and/or restock fees, where applicable. Orders in process may not be changed except with Seller’s written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefore.

 

12. Title and Risk of Loss

 

Notwithstanding the trade terms indicated above and subject to Seller’s right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Customer upon delivery of possession of the Products by Seller to the carrier; provided, however, that title to any software incorporated within or forming a part of the Products shall at all times remain with Seller or the licensor(s) thereof, as the case may be.

 

(a) Severability - If any term or provision of this Agreement or any application thereof shall be held invalid or unenforceable, the remainder of this Agreement and any application of the terms and provisions shall not be affected thereby, but shall remain valid and enforceable.

 

(b) Applicable Law, Venue - This Agreement is made pursuant to, and shall be construed and enforced exclusively in accordance with, the laws of the State of California (and United States federal law, to the extent applicable), without giving effect to otherwise applicable principles of conflicts of law.  Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement against any of the parties shall be brought in the courts of the State of California, or, if applicable, in the United States District Court for the Central District of California, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding. In the event of any legal proceeding between the Seller and Customer relating to this Agreement, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury.

 

(c) Time Limitations - Regardless of any contrary statute or law, any suit seeking to enforce any provision of, or based on any right arising out of, this Agreement must be filed within one (1) year from the date that the cause of action arose.

 

(d) Enforceability - Seller’s failure to enforce, or Seller’s waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision.

 

(e) Assignment - This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and designees; provided, however, neither party shall have the right to transfer, assign or delegate its rights or obligations under this Agreement or any portion thereof without the prior written consent of the other party (except that either party may assign this Agreement to a parent, subsidiary or successor corporation without such consent).

 

The Terms & Conditions herein apply to Spectrum subsidiaries Spectrum Chemical Mfg. Corp. and Spectrum Pharmacy Products.